“Unprecedented” – A Right in Search of a Remedy

On December 14, 2023, a Gilbert LLP team led by Jon-Michael Dougherty appeared in the United States Court of Appeals for the Second Circuit to argue an appeal on behalf of Gilbert client Michael D. Cohen, the one-time personal attorney to former President Donald J. Trump.  The Second Circuit appeal was of the dismissal by the United States District Court for the Southern District of New York of Mr. Cohen’s lawsuit against former President Trump, Attorney General William Barr, and other federal officials for using the threat of continued incarceration as leverage over Mr. Cohen to compel Cohen to waive his right to freely speak about and to criticize the President.  Cohen’s claim is based on the U.S. Supreme Court decision Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).  Mr. Dougherty argued that, while the Supreme Court has drastically narrowed the availability of a Bivens remedy, it has nonetheless recognized that a new Bivens context may still be afforded a remedy “in the most unusual circumstances,” to ensure there is an adequate level of deterrence for federal officials contemplating the violation of citizens’ rights.

This audio clip features excerpts from Mr. Dougherty’s argument before the Second Circuit.